Posted by David GerstmanFriday, June 5, 2015 at 1:00pm | 6/5/2015 - 1:00pm

Boycotting the boycotters spreads to another state.

South Carolina passed an anti-BDS bill, that was signed into law by Gov. Nikki Haley yesterday, prohibiting the state from doing businesses with firm or individuals who engage in a “boycott of a person or an entity based in or doing business with a jurisdiction with whom South Carolina can enjoy open trade.”

The bill makes no mention of Israel directly, but prevents public entities from contracting with businesses engaging in the “boycott of a person or an entity based in or doing business with a jurisdiction with whom South Carolina can enjoy open trade.”

The premise of the law is that the Boycott, Divestment and Sanctions movement, colloquially known as BDS, discriminates against the people of Israel and weakens the economy of South Carolina.

“Boycott,” for the purposes of the law, is defined as the effort by companies to “blacklist, divest from or otherwise refuse to deal with a person or firm when the action is based on race, color, religion, gender or national origin of the targeted person or entity,” according to the text.

The South Carolina bill was signed into law a few weeks after Illinois passed legislation prohibiting the state from investing its pension funds in businesses that boycott Israel. Shortly afterwards Prof. Jacobson reported that New York had started working on a bill similar to the Illinois bill. Prof. Jacobson also quoted law professor Eugene Kontorovich on the significance of the Illinois bill:

The significance of the [Illinois] bill cannot be underestimated. European countries have in recent years been whispering dark threats in corporate ears about the “legal and economic risks” of doing business with Israeli companies. The vagueness of these warnings is a testament to their legal groundlessness. But such scare tactics could not help but affect, at the margin, corporate decision-making. Now, the EU will – if it is honest – have to warn businesses of the legal and economic risks of consciously refusing to do business with such Israeli companies.

More generally, the Illinois bill is part of a broad political revulsion over the long-simmering BDS movement (“Boycott, Divestment, and Sanctions” – the strategy of economic warfare and delegitimization against Israel). While BDS has gotten most of its successes with low-hanging fruit like British academic unions and pop singers, the anti-boycott efforts are getting an enthusiastic reception in real governments, on the state and federal level. And that is because the message of the BDS movement – Israel as a uniquely villainous state – is fundamentally rejected by the vast majority of Americans.

The Post reports that according to a spokesman for the Israel Allies Foundation, ““a bloc of sponsors across 18 states has already committed to introducing similar legislation in their next legislative cycle.” The Israel Allies Foundation is working on fighting BDS at the state level.

I disagree. The state is prohibited from discriminating based on gender, race, religion, national origin, etc., in all of its decisions, so it makes sense that it would require entities it engages in business contracts with to hold the same non-discriminatory practices.

Now, see my comment below as to whether “the state” refers to the government and public sector of SC, or SC as a whole, private sector included. The former I think is fine, the latter may be stretching too far.

Given your legal philosphy, Jakee, you believe also that the govt. should be forced to contract with those who do business with the KKK, Skinheads, Neonazis and the list goes on and on.

You may not see the analogy, (that’s fine), but having grown up in rural Ms during the turbulent 1960s, I remember well, the KKK trying to force us (the rest of the state) to do the same thing.

We could have turned the other cheek, but we (Mississippians) finally did the right thing. We just about bankrupted them. They still exist but just barely. They fought tooth and nail to get the state to NOT do business with Africans Americans, Jews, Catholics etc.

In retrospect we did the right thing (though none of us were absolutely sure at the time) except the best of Constitutional Lawyers.

The kkk were convinced we were the haters, not them. Of course we all know the rest of that story…..and the BDS looks, talks and quacks like the klan (except this time from the left) But hate is hate whether it be race, nationality or religion.

If a group is going to boycott, they better be damned prepared to be boycotted and live with us. Remember WE THE PEOPLE run the state; and the government is our public servant. They simply did what we asked.

So glad to see that it appears most of the other states will follow suite. It is, whether one agrees or not, the right thing to do.

Just a couple questions:
– Does “the state” refer to “South Carolina” (as in, the government/public sector of SC), or does it apply to everyone in SC? Can private entities still opt to engage in BDS ridiculousness under this new law?
– How does that jive with long-standing “free association” rulings (in this case, freedom to not associate)?

Don’t get me wrong; I like the idea of laws that prohibit a state (the public sector part of a state, at least) from doing business with entities who consciously and intentionally discriminate based on non-business demographics like gender, religion, national origin, etc., but I worry about how these laws will stand up to judicial scrutiny (and you know they’ll eventually be challenged!).

Here’s where I’m coming from: My state (Oregon) government contracts with county governments and some private entities (usually non-profits) to provide services to the citizens of the state. The terms of the contract always say that when doing business on behalf of the State of Oregon, the contracted entities and their employees must follow all the same rules/regulations/policies/laws regarding processing applications and handling applicants’ personal information that the state and state employees must follow.

It makes no sense whatsoever to allow a non-profit organization or private company offering services on behalf of the state to discriminate based on race, religion, gender, national origin, etc., when the state itself is barred by law from doing so. This new law in South Carolina sounds like an extension of that completely-reasonable policy.